Page 1 – Honorable James W. Holsinger, Jr., M.D., Ph.D.

November 12, 2004

Honorable James W. Holsinger, Jr., M.D., Ph.D.

Secretary

Cabinet for Health Services

275 East Main Street

Frankfort, Kentucky 40621-0001

Dear Secretary Holsinger:

The purpose of this letter is to respond to Kentucky’s March 31, 2004 submission of its Federal Fiscal Year (FFY) 2002 Annual Performance Report (APR) for the Individuals with Disabilities Education Act (IDEA) Part C funds used during the grant period July 1, 2002 through June 30, 2003. The APR reflects actual accomplishments made by the State during the reporting period, compared to established objectives. The APR for IDEA is designed to provide uniform reporting from States and result in high-quality information across States.

The APR is a significant data source utilized in the Continuous Improvement and Focused Monitoring System (CIFMS) implemented by the Office of Special Education Programs (OSEP), within the U.S. Department of Education. The APR falls within the third component of OSEP’s four-part accountability strategy (i.e., supporting States in assessing their performance and compliance, and in planning, implementing, and evaluating improvement strategies) and consolidates the self-assessing and improvement planning functions of the CIFMS into one document. OSEP’s Memorandum regarding the submission of Part C APRs directed States to address five cluster areas: General Supervision; Comprehensive Public Awareness and Child Find System; Family Centered Services; Early Intervention Services in Natural Environments; and Early Childhood Transition.

Background

Kentucky submitted a Self-Assessment to OSEP in December 2001 that identified the following sixteen areas for improvement that Kentucky addressed in an Improvement Plan (IP): (1) lack of a systemic method to identify State-wide issues; (2) continued occurrence of persistent deficiencies after enforcement actions (34 CFR §303.501(b)(4)); (3) under-utilization of local and private funding sources; (4) the absence of a structured process to convey personnel needs to Institutions of Higher Education (IHEs); (5) the need for consistency in data collection and the need to utilize data to improve the child find function in rural areas to ensure timely referrals (34 CFR §303.321(d)(2)(ii)); (6) lack of parental feedback and limited use of parent surveys; (7) limited understanding by parents of their parental rights and responsibilities (34 CFR §303.400); (8) lack of parental involvement in the development of Kentucky’s performance goals and indicators; (9) concern regarding professional development and training of service providers; (10) personnel shortages in certain professions or disciplines in some areas of the State; (11) issues regarding transitioning from First Steps; (12) Part C exit data not accurately reported or specified on exit forms; (13) lack of systemic data that confirmed all children eligible for Part B received services by their third birthday (34 CFR §303.344(h)); (14) inconsistency in transition training; (15) transition training not tracked; and (16) inconsistency in the State-wide use of parent surveys.

Kentucky submitted an IP to OSEP dated June 28, 2002 and OSEP approved the IP in a June 13, 2003 letter to Kentucky. In addition to approving the IP, the June 2003 letter requested that Kentucky address four areas of potential noncompliance: (1) the need to correct the recurrence of deficiencies identified in monitoring as required by 34 CFR §303.501(b)(4); (2) the need to identify, locate, and evaluate all eligible infants and toddlers in the State, and the need to develop an effective method to determine which children received needed early intervention services as required by 34 CFR §303.321(b)(1) and (b)(2); (3) the need for IFSPs to include transition plans as required by 34 CFR §303.344(h), and that monitoring of transition would result in compliance with the requirement by 34 CFR §303.148 regarding a smooth transition from Part C to Part B preschool or other appropriate services; and (4) the need to ensure that families were provided information regarding their procedural safeguards and were informed of, and understood, their parental rights and responsibilities as required by 34 CFR §§303.400 and 303.403.

In the June 2003 letter, Kentucky was asked to determine its compliance status in the above-mentioned four areas and provide to OSEP by August 29, 2003, documentation supporting its conclusions. If noncompliance or potential noncompliance was indicated, a revised IP was required with baseline data and strategies to resolve noncompliance by June 13, 2004. The June 2003 letter also required a Progress Report to OSEP by August 29, 2003 on the implementation of strategies in the current IP, and a subsequent Progress Report by December 31, 2003, to address all issues, including those in the revised IP, if a revised IP was warranted. OSEP received the August 2003 Progress Report in which the State indicated no areas of noncompliance but which did not include documentation to support its assertion. OSEP also received the December 2003 Progress Report. Kentucky submitted the FFY 2001 APR to OSEP on July 1, 2003 and OSEP responded to the FFY 2001 APR and the August 2003 Progress Report in a February 13, 2004 letter to Kentucky; the letter indicated that an analysis of the December 2003 Progress Report would be included in this APR letter.

OSEP staff conducted a verification visit to Kentucky in November 2003 to verify the effectiveness of the State’s systems for general supervision and data collection under section 618 of IDEA. OSEP reported the results of the verification visit in an April 15, 2004 letter to Kentucky. OSEP indicated in its April 2004 letter that, without collecting data at the local level, OSEP could not determine the effectiveness of Kentucky’s monitoring system in identifying and correcting noncompliance; and reiterated OSEP’s concern thatdata-based determinations were not included in Kentucky’s FFY 2001 APR. In addition, the verification letter advised the State that its Family Rights Handbook did not include the prior written notice content required by 34 CFR §303.403(b) and required the State to develop and submit, by June 15, 2004, its prior written notice documents to ensure that the prior written notice provided to parents meets the requirement at 34 CFR §303.403(b). OSEP received the prior written notice documents from Kentucky and will provide its analysis of those documents in a separate letter to the State.

The State’s APR should reflect the collection, analysis and reporting of relevant data, and document data-based determinations regarding performance and compliance in each of the cluster areas (as well as any other areas identified by the State to ensure improvement). OSEP’s comments regarding the December 2003 Progress Report and the FFY 2002 APR are listed by cluster area.

General Supervision

To address the areas for improvement from the State’s Self-Assessment and the potential noncompliance identified by OSEP in this cluster, the State reported in the FFY 2002 APR that: it used data reports and quarterly monitoring reports to identify systemic issues (APR, page 3) (but the State did not identify for OSEP those systemic issues it identified; nor did the State indicate how it addresses the continued occurrence of persistent deficiencies after enforcement actions); it revised the individualized family service plan (IFSP) effective July 2004 to monitor the use of other payment sources (December 2003 Progress Report, page 5); and it developed a proposal to strengthen collaboration with the Institution of Higher Education (IHE) consortium (APR, page 8).

In the FFY 2002 APR, the State provided monitoring data that covered the period from the third quarter of 2003 through the first quarter of 2004. The data included information on monitoring visits completed and scheduled; the type of providers monitored; the top five areas cited; noncompliance findings; and the average number of contracts that were in full compliance (APR, page 4). The State analyzed its monitoring data and concluded that: compliance was increasing, demonstrating the effectiveness of general supervision; there continued to be an increase in the number of contracted entities and a full contingent of monitors; there was an increase in the number of contracts monitored per quarter; and State regulations were amended to address the problems found during monitoring (APR, page 5).

While the State reported such monitoring data as the type of providers monitored, areas cited, noncompliance findings, and contracts in full compliance, it did not link the providers monitored to the monitoring finding; therefore, OSEP could not determine whether the State’s system of general supervision was effective in identifying and correcting deficiencies identified through monitoring, as required by 34 CFR §303.501(b)(4), and whether monitoring findings identified systemic issues.

To assist OSEP in determining the effectiveness of the State’s monitoring system in identifying and correcting noncompliance, in the next APR, the State must identify for each provider type it monitored (e.g. Point of Entry (POE)), evaluation, therapeutic, and primary service coordinator (PSC)): (1) the number of providers monitored; (2) the findings made, listed by provider; (3) indicate if corrective action plans were required, and if so, provide (a) examples of two corrective action plans approved by the State, (b) the time period given providers to correct all noncompliance, and (c) the data or information each provider must submit to the State in order for the State to determine whether the noncompliance has been corrected; (4) for those noncompliant providers, indicate if each met the timeline for correcting noncompliance, and the number of providers that corrected all noncompliance within established timelines; (5) for noncompliance not corrected within the required timeline, indicate if any enforcement actions were taken (including the type of sanctions); (6) if persistent noncompliance existed, identify the barriers in correcting persistent noncompliance and how the State has addressed, or will address, those barriers; and (7) issues the State identified as systemic during the FFY 2002 reporting period and an analysis of strategies implemented to resolve those systemic issues.

Kentucky reported that it utilized a Family Rights Handbook to inform families of their rights and procedural safeguards. Although the Family Rights Handbook was utilized by the State, the State was unable to determine whether families were aware of their complaint rights; however, the State reported that it could determine that procedural safeguards were provided to all families at the initial visit and each IFSP meeting (APR, page 6). In June 2004, Kentucky submitted the Family Rights Handbook to OSEP for review, and OSEP will provide its analysis of the Handbook in a separate letter. Kentucky reported that no formal complaints were filed during the reporting period, and any informal complaints were resolved locally by technical assistance teams with guidance from the administration, as needed (APR, page 2).

The State reported slippage in the area of sufficient personnel (APR, pages 7–8). A focused provider recruitment strategy resulted in limiting new provider contracts in under-served areas of the State and decreased provider availability. The State did not report on what impact, if any, this limitation of providers had on conducting evaluation and assessments and the provision of early intervention services. In the FFY 2003 APR, Kentucky must provide information that includes both implementation of strategies and the resulting data demonstrating improvement in the area of personnel development, sufficient personnel, and data indicating whether timely evaluations and assessments and provision of Part C services are negatively affected by any personnel unavailability.

The State identified flaws in two data reports: (1) the 45-day timeline report; and (2) the IFSP report that captured the percentage of services delivered (APR, page 9). The APR indicated the reason the reports were flawed but did not indicate how or when the reports would be corrected, and in the interim, how the State would determine compliance with the 45-day timeline requirements under 34 CFR §§303.321(e)(1), 303.322(e)(2), and 303.342(a) and ensure that children would receive all the services identified on the IFSP as required by 34 CFR §§303.340(c) and 303.342(e). In the next APR, the State must provide to OSEP strategies, evidence of change, targets, and timelines for correction of the flawed data reports within a reasonable period of time and, in the interim, how the State will determine compliance with the Part C 45-day timeline and EI service provision requirements.

Comprehensive Child Find System

To address the areas for improvement from the State’s Self-Assessment and the potential noncompliance identified by OSEP in this cluster, the State reported that referral source data indicated good rural penetration similar to the population distribution of Kentucky; updated monthly report forms were implemented in January 2004; and POEs were required to report all referral sources on their monthly report (December 2003 Progress Report, page 10). The State reported that it contracted with neo-natal follow-up programs to ensure more timely and appropriate referrals; however, the FFY 2002 APR and December 2003 Progress Report did not include performance data on the results of implementation of the strategies. In the next APR, the State must provide to OSEP, data on the number and source of referrals received in rural areas, including the number of referrals from neo-natal follow-up programs.

Child count data reported by the State under Part C, Section 618 of IDEA, from indicated that the State’s December 1, 2002 child count was 2.67% for the birth to three population. The national average for children served under Part C was 2.24% for that same time period. Data for the birth to twelve-month category were not yet available.

Family Centered Services

To address the areas for improvement from the State’s Self-Assessment, the State determined that it had no baseline data to determine whether family assessments met the Federal requirements at 34 CFR §303.322(d), but that it would continue to monitor for family assessments and analyze data to identify barriers to addressing family issues (APR, page 14). A committee was formed to address translation of forms into other languages and formats (December 2003 Progress Report, page 3). The State reported that the family survey had not been created, but the State reviewed existing family surveys and adapted them to its needs (APR, page 17). The State must continue to report on the implementation of its strategies to ensure compliance and performance in this cluster area.

Early Intervention Services in Natural Environments

To address the areas for improvement from the State’s Self-Assessment and the potential noncompliance identified by OSEP in this cluster, the State reported using quarterly data reports to monitor district and discipline-specific provider/child ratios (December 2003 Progress Report, page 6). The Comprehensive System of Personnel Development (CSPD) committee reviewed various strategies for personnel training and development, and the removal of barriers to obtaining certification. To address personnel shortages, the State reported that it allowed special consideration to providers willing to provide services in under-served areas (December 2003 Progress Report, page 7).

The State reported having no citations regarding family supports and services (APR, page 23), but did not provide data or information to indicate if IFSPs included all the services necessary to meet the identified needs of the child. In the area of services provided in the natural environment, the State reported its performance data indicated that over 90% of children received services in the home or community setting. In the next APR, the State must report compliance data demonstrating: (1) whether IFSPs for children who do not receive early intervention services in natural environments have appropriate child based justifications; and as stated in the General Supervision cluster; and (2) whether children received the services listed on their IFSP and the impact, if any, of personnel shortages on the provision of early intervention services.

The Part C FFY 2001 and FFY 2002 APR instructions requested data on the percentage of children participating in the Part C program that demonstrate improved and sustained functional abilities (in the developmental areas listed in 34 CFR §303.322(c)(3)(ii)). The State reported having no baseline data regarding the functional abilities of children eligible for the Part C program. In the FFY 2003 APR, due March 31, 2005, Kentucky must either submit data (whether collected through sampling, monitoring, IFSP review, or other methods), targets for improved performance and strategies to achieve those targets for this area, or its plan to collect and report to OSEP data by the FFY 2004 APR, (expected deadline March 2006), including a detailed timeline of the activities necessary to implement the plan.

Early Childhood Transition

To address the areas for improvement from the State’s Self-Assessment and the potential noncompliance identified by OSEP in this cluster, the State reported that it continued to pursue funding sources to link the Part C and Part B data systems in order to assist in collecting systemic data (December 2003 Progress Report, page 28). OSEP assumes that any data tracking system that tracks children from Part C to Part B will be consistent with the IDEA and the Family Educational Rights and Privacy Act (FERPA). OSEP has enclosed, for your information, a copy of its February 11, 2004 Letter to Elder which describes the circumstances under which the limited disclosure of personally identifiable information from a child's education records may be made in order to meet IDEA's child find mandate.